ERROL MCDONALD, Plaintiffres-ap, v. EDELMAN & EDELMAN, P.C. Defendants-Appellants-res

11031. ERROL MCDONALD, Plaintiffres-ap, v. EDELMAN & EDELMAN, P.C. Defendants-Appellants-res — L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Scott E. Kossove of counsel), for appellants-res — The Berkman Law Office, LLC, Brooklyn (Robert J. Tolchin of counsel), for res-res — Order, Supreme Court, New York County (Ellen M. Coin, J.), entered November 19, 2012, which granted so much of defendants' motion as sought to dismiss the first, third and fourth causes of action and denied so much of the motion as sought to dismiss the second cause of action, unanimously affirmed, with costs against defendants.

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11031. ERROL MCDONALD, Plaintiffres-ap, v. EDELMAN & EDELMAN, P.C. Defendants-Appellants-res — L’Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Scott E. Kossove of counsel), for appellants-res — The Berkman Law Office, LLC, Brooklyn (Robert J. Tolchin of counsel), for res-res — Order, Supreme Court, New York County (Ellen M. Coin, J.), entered November 19, 2012, which granted so much of defendants’ motion as sought to dismiss the first, third and fourth causes of action and denied so much of the motion as sought to dismiss the second cause of action, unanimously affirmed, with costs against defendants.

Defendants argue that the second cause of action, which seeks an accounting, is based on breach of fiduciary duty, in light of the attorneyclient relationship, and seeks money damages, and is therefore barred by the three-year statute of limitations set forth in CPLR 214(6). They improperly raised this argument for the first time in reply on their motion (see Caribbean Direct, Inc. v. Dubset LLC, 100 AD3d 510 (1st Dept 2012]). In any event, the argument is unavailing. Plaintiff’s claim for an accounting so that he can recoup disbursements allegedly improperly charged against his jury award has little to do with whether defendants performed their legal services in a non-negligent manner (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co.], 3 AD3d 143 [1st Dept 2004], affd 3 NY3d 538 [2004]). It has to do with whether defendants owe plaintiff a fiduciary duty to account for money or property allegedly belonging to him, and is therefore governed by the “residual” six-year statute of limitations set forth in CPLR 213(1) (see Hartnett v. New York City Tr. Auth., 86 NY2d 438, 443 [1995]; Bouley v. Bouley, 19 AD3d 1049, 1051 [4th Dept 2005]).

ERROL MCDONALD, Plaintiffres-ap, v. EDELMAN & EDELMAN, P.C. Defendants-Appellants-res

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